Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others (JA103/2014) [2016] ZALAC 11 (24 March 2016)

Principle:

The principle of majoritarianism found in s 23(1)(d) of the LRA, read with s 65(1)(a) of the LRA, which prohibits minority employees from striking if provided for in a collective agreement which has been extended to be binding on them, is not contrary to the Constitutional right to strike and bargain collectively.

Facts:

As a result of the 2013 annual wage negotiations in the mining industry, the Chamber entered into a collective agreement with NUM, Solidarity and UASA that was extended to cover all employees, including AMCU members, in terms of s23 of the LRA. This was subsequently challenged by AMCU. Each of the mining companies who were part of the Chamber of Mines (Harmony, Anglo Gold and Sibanye) owns more than one mine. At certain of the individual mines of those companies AMCU had a majority membership and at others it did not, but overall AMCU did not have the majority membership at most of the companies' mines.

The main issue in the Labour Court and on appeal to the LAC was whether each individual mine of the respective mining companies, constituted a "workplace", as defined in s213 of the LRA. AMCU contended that they were - and therefore where AMCU was the majority union, the collective agreement with NUM did not apply. But AMCU also argued that if the individual mines were not separate workplaces, then s23(1)(d)(iii) of the LRA was unconstitutional (this is the section in terms of which a collective agreement can be extended to members of minority unions).

The Labour Court held on the facts that the individual mines of the respective companies did not constitute an independent workplace and that the sections under attack, including s23(1)(d)(iii) of the LRA, are constitutional. The LC found that the agreement had been validly extended to other employees in the respective workplaces, including AMCU's members.

The LC's decision was taken on appeal to the LAC. At the LAC, the Union argued that by virtue of the principle of majoritarianism contained in s23(1)(d) of the LRA, minorities in the workplace may be bound by a collective agreement entered into between the employer/employers and the majority of employees, or the representatives of that majority. S23(1)(d) read with s65(1)(a) of the LRA effectively means that minorities are also precluded from striking in respect of the subject matter of the agreement which is binding upon them. The objection to this consequence was primarily based on the notion that s23(1)(d) does not have the safeguards which s32 of the LRA does(dealing with the extension of bargaining council collective agreements) in relation to the extension of collective agreements to non-parties.

The LAC upheld the Labour Court's judgment confirming that the principle of majoritarianism found in s23(1)(d) (read with s65(1)(a) which prohibits minority employees from striking if covered by a collective agreement that has been extended to apply to them), is not contrary to the Constitutional right to strike and to bargain collectively.

Extract from the judgment:

Coppin J:

[83] In summary then, the definition of "workplace" in section 213 of the LRA is applicable to section 23(1)(d) of the LRA. The word "workplace" in that section, means the "place or places where the employees of an employer work". The fact that an employer has more than one place of work does not mean that each of those places of work is a "workplace".

[84] In terms of section 213, if an employer carries on or conducts more than one operation - that is independent of the other by reason of its size, function or organisation, the place or places where the employees work in connection with each independent operation, constitutes a workplace for that operation.

[85] Whether each mine of the respective employer or each such mine where AMCU had a majority, constituted a 'workplace' of the employees of the employer, was a question, not of interpretation, but of fact. To constitute a separate 'workplace' it had to be established that the mines (of each respective employer) were independent operations by reason of their size, function or organisation. In this instance, appellants merely made the allegation, but failed to substantiate it. On the contrary, it was established on the papers that each employer carried on its respective mines as a single independent operation.

[86] The court a quo correctly found that the collective agreement bound the members of AMCU who were employed by the respondent employers, and by extension, bound AMCU as the trade union of those employees. The collective agreements contemplated in section 23 are not the same as those contemplated in section 32. The latter are collective agreements concluded within a bargaining council, while the former are collective agreements concluded elsewhere.

[87] The collective agreements envisaged in section 23 cannot be extended in terms of section 32. Section 23 contains its own extension mechanism. The section provides that the collective agreement will be binding, inter alia, on employees, who are not members of the trade union or unions who are party to the collective agreement, if they are identified in the agreement, the agreement expressly binds them, and the trade union, or unions, who are party to the agreement, have as members the majority of employees employed by the employer in the workplace. These requirements were rightly held to have been met. The collective agreement between the first respondent and the trade unions, effectively identified the employees that were to be bound by it, including AMCU members, and expressly made the agreement binding upon them - and the other trade unions, who were parties to the collective agreement, had as their members the majority of employees employed by each of the respective employers in their respective workplaces.

Constitutional challenge

[88] In light of the conclusion reached in respect of the meaning of "workplace", I will now consider the constitutional challenge.

[89] The appellants did not persist in this Court with the relief they sought in prayer 3 of their counter-application, but sought the relief described in prayer 4, as an alternative to the relief in prayer 3.

[90] Prayer 4 reads as follows:

'Alternatively to 3 above, to the extent that the Court hearing the proceedings on the return day finds that the interpretation placed upon the provisions of section 23(1)(d) as read with section 65(1)(a) and the definition of 'workplace' in section 213 of the Labour Relations Act 66 of 1995, by Cele J, in the judgment under case number J99/14 dated 30 January 2014, is correct (because such sections cannot reasonably be interpreted otherwise), declaring that the provisions of section 23(1)(d) as read with section 65(1)(a) and the definition of 'workplace' set out in section 213 of the Labour Relations Act, 66 of 1995, conflicts with the Constitution of the Republic of South Africa 1996 in particular sections 10 (human dignity), 18 (freedom of association), 22 (freedom of trade, occupation and profession), 23(1), (2)(a), (b), (4)(a) and (b) and (5) (labour relations) and section 34 (administrative justice) to the extent that these provisions:

4.1. Grant private employers and Trade Unions the power to secure by means of an extended collective agreement the imposition of binding obligations upon employees and Trade Unions not party to such agreement; and/or
4.2. Grant private employers and Trade Unions the power by means of an extended collective agreement to prevent non-party trade Unions and their members from exercising their aforesaid fundamental rights, including but not limited to their right to collectively bargain and their right to strike over matters of mutual interest.'

[91] In terms of prayer 5:

'[A] declarator is sought that the extension of the collective agreement is unconstitutional and invalid and declaring that the provisions of clauses 17.3 and 17.4 (which prohibits the appellants from collective bargaining or striking in support of demands of any issue covered in the agreement or any other existing terms and conditions of such agreement) to be unconstitutional and invalid and that the strike by the appellants would be protected under the Labour Relations Act and making such further order that is just and equitable in terms of section 172 of the Constitution of the Republic of South Africa 1996.'

[92] The appellants' constitutional attack is relatively diffuse. It is directed at section 23(1)(d) read with section 65(1)(a) and the definition of "workplace" in section 213 of the LRA. The appellants bear the onus to prove the infringement(s) of their constitutional rights. The challenge ought to be clear and forthright, not only clearly identifying the alleged offending provision(s) and the constitutional right(s) that have been infringed thereby, but also demonstrating ,in the clearest possible language, the nature and extent of the alleged infringement. The diffuseness of the appellants' challenge not only makes it difficult for the opposing parties to respond and for the court to determine the matter, but for the appellants themselves to discharge their onus.

[93] The appellants' attack appears to be directed to an extent at section 23(1)(d) of the LRA, insofar as the principle of majoritarianism is part of that provision. Section 23(1)(d), read with section 65(1)(a) of the LRA, prohibits minority employees from striking if the collective agreement they are bound by, albeit by extension, so provides. The irony of the attack is that the appellants are contending for certain rights in terms of the LRA, on the ground that their members are in the majority at certain of the individual mines owned by the respondent mining companies. Their argument was not per se in opposition to the principle, but to the fact that it is operative in section 23(1)(d), which according to them, does not have similar safeguards to section 32 of the LRA.

[94] It was submitted on behalf of the second respondent that the appellants' attack was mainly based on the argument that section 23(1)(d) of the LRA limits their right in terms of section 23 of the Constitution, namely, their rights to strike and engage in collective bargaining. In that regard, it was submitted, on behalf of NUM, that section 23(1)(d), on its own, does not limit the right to strike, but that 65(1)(a) of the LRA limits a person's right to strike if that person is bound by a collective agreement that contains a peace clause, and does so despite the fact that such a person, or her trade union, is not party to the collective agreement and that its binding effect has been extended to the person in terms of that agreement as contemplated in section 23(1)(d).

[95] However, it was submitted on behalf of all the respondents that to the extent that section 23(1)(d) of the LRA, read with the other provisions, limits the rights to strike and to collectively bargain, the limitation was reasonable and justifiable.

[96] In terms of section 23(2) of the Constitution, every worker has the right to strike, to form and join a trade union and to participate in the activities and the programmes of a trade union.

[97] In terms of section 23(5) of the Constitution, every trade union has the right to engage in collective bargaining. But collective bargaining may be regulated through national legislation. However, in terms of that section, any limitation of, inter alia, those rights must comply with section 36(1) of the Constitution.

[98] Section 39 of the Constitution provides:

"When interpreting the Bill of Rights, a court, tribunal or forum-

must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

must consider international law; and

may consider foreign law.

When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights."

[99] Section 33 of the Constitution further provides:

"When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law."

[100] The meaning of section 23(5) of the Constitution is unambiguous. If, objectively viewed, the regulation of collective bargaining impacts negatively, or more particularly, limits any of the rights included under section 23 of the Constitution, including the right to strike, then the regulation must be evaluated under section 36(1) of the Constitution.

[101] The LRA is the national legislation which, inter alia, regulates collective bargaining. One of the purposes of the LRA is, inter alia, in terms of section 1(c) "to provide a framework within which employees and their trade unions, employers and employers' organisations can (i) collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and (ii) formulate industrial policy".

[102] In terms of section 1(d) of the LRA, the purpose of the LRA is also to "promote - (i) orderly collective bargaining; (ii) collective bargaining at sectoral level; (iii) employee participation in decision-making in the workplace and the effective resolution of labour disputes". The stated purposes of the LRA are doubtlessly consistent with the Constitution, but the means adopted to achieve those purposes must also pass constitutional muster. If the chosen means limit any of the rights contained in, inter alia, section 23 of the Constitution, in order to pass muster, the limitation must be reasonable and justifiable in the sense contemplated in section 36.

[103] All relevant factors are to be taken into account, including the nature of the right that is limited, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose, and whether the purpose could have been achieved by any less restrictive means. Section 36 contemplates a proportionality analysis in terms of which those factors are weighed in order to determine the justifiability of the limitation. In performing the required exercise courts are not to "adhere to a sequential check-list", but are to"engage in a balancing exercise and arrive at a global judgment on proportionality".

[104] In this matter, the complaint is essentially that by virtue of the principle of majoritarianism, which is contained in section 23(1)(d) of the LRA, minorities in the workplace may be bound by a collective agreement entered into between the employer/employers and the majority of employees, or the representatives of that majority, in the workplace. Section 23(1)(d) read with section 65(1)(a) of the LRA effectively means that minorities (employees and their unions who are bound in the sense contemplated by section 23(1)(d)), are also precluded from striking in respect of the subject-matter of the agreement which is binding upon them. The objection to this consequence is primarily based on the notion that section 23(1)(d) does not have the safeguards which section 32 of the LRA has in relation to the extension of collective agreements to non-parties.

[105] Section 23(1)(d) of the LRA is but one instance in the LRA where the legislature had chosen to apply the principle of majoritarianism. There is nothing unconstitutional about the principle itself. It is a useful and essential principle applied in all modern democracies, including the Republic of South Africa. It has been recognised as an essential and reasonable policy choice for the achievement of orderly collective bargaining and for democratisation of the workplace and the different sectors. In Kem-Lin Fashions CC v Brunton and Another, this Court (per Zondo JP) expressed itself on the topic as follows:

'The legislature has also made certain policy choices in the Act of which are relevant to this matter. One policy choice is that the will of the majority should prevail over that of the minority. This is good for orderly collective bargaining as well as for the democratisation of the workplace and sectors. A situation where the minority dictates to the majority is, quite obviously, untenable but also a proliferation of trade unions in one workplace or in a sector should be discouraged.'

[107] It is also correct, as the second respondent has submitted, that the weight of academic authority has endorsed the Legislature's choice of majoritarianism as essential for collective bargaining.

[108] This principle is also recognised in international law and, in particular, in the applicable conventions and recommendations of the International Labour Organisation ("ILO").

[109] The two relevant conventions of that body, which are binding on the Republic of South Africa and which are also referred to in the judgment of the court a quo, are Convention number 87, namely, the Freedom of Association and Protection of Right to Organised Convention of 1948 and Convention number 98, namely, the Right to Organised and Collective Bargaining Convention of 1949.

[110] The jurisprudence of the committees engaged in ensuring the observation and application of those Conventions, including the recommendations, is also an important resource. Specifically with regard to the principle of majoritarianism, both, the Committee of Experts and the Freedom of Association Committee of the governing body of the ILO have "held that the majoritarian system will not be incompatible with freedom of association, as long as minority unions are allowed to exist, to organise members, to represent members in relation to individual grievances and to seek to challenge majority unions from time to time". (footnotes omitted)

[111] The respondents have submitted that the adoption of the principle of majoritarianism in the context of section 23(1)(d), is rational and reasonable, i.e. is justified, in terms of section 36 of the Constitution. I will return to this issue after considering some of the other factors.

[112] The principle of extending collective agreements to minorities or non-member workers in the workplace is not contrary to international law. The appellants have, seemingly, accepted the legitimacy of such extension, but for the fact, according to them, that section 23(1)(d) of the LRA does not have the "safeguards" found under section 32 of the LRA. The Freedom of Association Committee of the ILO, for example, states that:

'When the extension of the agreement applies to non-member workers of enterprises covered by the collective agreement, this situation in principle does not contradict the principles of freedom of association, insofar as under law it is the most representative organisation that negotiates on behalf of all workers, and the enterprises are not composed of several establishments (a situation in which the decision respecting extension should be left to the parties).'

[113] In their General Survey, the Committee of Experts confirm that the extension of collective agreements to non-parties is not contradictory to the principle of voluntary collective bargaining and does not violate Convention No. 98.

[114] With regard to the nature of the main right, which the appellants assert has been unconstitutionally impacted, namely, the right to strike, it is necessary to bear in mind that even though it is undoubtedly essential for the success of collective bargaining, like all other organisational rights, it is not an end in itself. It is one means to the end of collective bargaining, which is the conclusion of a binding collective agreement. Strike action is an essential, albeit ultimate, means of finding, or achieving, negotiated solutions to disputes of interest. It is not an absolute right and its limitation may be justified as contemplated in the Constitution.

[115] The LRA does not confine collective bargaining to bargaining councils under section 32. Section 23(1)(d) refers to and recognises collective bargaining outside the system of bargaining councils. The LRA also recognises that besides bargaining within bargaining councils, that process may occur outside bargaining councils at different levels and particular at plant level and at a central level.

[116] I have already dealt with some of the important differences between sections 23(1)(d) and 32. The reason for requiring extensions of collective agreements, concluded within bargaining councils, to be effected by the Minister, has to do with the extent of the coverage of those agreements. It may apply to an entire sector, or area, and not only to non-party employees, or minority unions, but to all employers and workers within that sector, whereas collective agreements concluded in terms of section 23(1)(d) may only bind the employers and employees (and trade unions) who are parties to it, as well as non party employees, who are minorities in the workplaces of those employers and to whom the agreement has been made binding.

[117] It would be impractical if minority workers were not bound to collective agreements concluded at workplace level between the employer(s) and trade unions who represented the majority of the employees, simply because they were not parties to that collective agreement. Furthermore, to require unanimity amongst all employees, despite different trade union membership or affiliation would be unrealistic. To prohibit extension of the collective agreement to the minority employees, who were not parties to the collective agreement, so that they are not bound by it, would not only undermine the enforcement and therefore the effectiveness of the collective agreement, but also be destructive of collective bargaining per se, to peace in the workplace and to the achievement of fair labour practices. Such consequences are clearly not in conformity with the LRA and the Constitution.

[118] The extension of such collective agreements on the basis of majoritarianism is not only rational, but is also reasonable. It is a means of ensuring not only that collective bargaining is successful, but that it brings about peace and order in the workplace.

[119] Section 23(1)(d) of the LRA expressly allows for employees, who are not members of the trade unions who are party to the collective agreement, to be bound by the agreement if the requirements or conditions stipulated in that section are met. Those employees must be identified in the agreement, which must specifically bind them and the trade unions, who are party to the agreement, must have as their members the majority of the employees employed by the employer in the workplace.

[120] The binding of non-parties is not only necessary to achieve the objectives of section 23(1)(d), but also of the broad purposes of the LRA, referred to earlier, including effective and orderly collective bargaining. The mechanism provided by section 32 for the extension of collective agreements concluded in bargaining councils is not a less restrictive means at all.

[121] It is clear from section 32 that the Minister does not have a wide discretion concerning the extension of collective agreements concluded in bargaining councils. If the requirements stipulated in that section have been complied with, the Minister, effectively, has to act upon the request for the extension of the agreement. Section 32(2) of the LRA provides that within 60 days of receiving the request, the Minister "must" extend the collective agreement if the requirements stipulated in sub-section (3) have been met.

[122] In terms of section 32(5), the Minister may extend the collective agreement despite sub-sections (3)(b) and (c) of section 32, if the parties to the bargaining council are sufficiently representative within the registered scope of the bargaining council and the Minister is satisfied that the failure to extend the agreement will undermine collective bargaining at sectoral level or in the Public Service as a whole.

[123] The appellants have, seemingly, misconstrued the Minister's powers in terms of section 32. The Minister's involvement in the bargaining process at workplace level is more likely to stultify the process and would certainly not contribute to its effectiveness or promote stability and peace in the workplace. The Minister's involvement in the process at workplace, or centralised level cannot enhance matters.

[124] The second respondent has gone as far as submitting that in setting a requirement of ministerial approval before a collective agreement can be extended, would in itself be a violation of the right to engage in collective bargaining and a contravention of ILO Convention No. 98.

[125] In the gold-mining industry, collective bargaining at central level has a long history. While collective bargaining within an established bargaining council would be ideal for some, there are possibly reasons why this has not occurred in this industry. There appears to be problems and challenges specifically to the mining industry which has resulted in the continuation of current practice.

[126] The appellants' argument that section 23(1)(d) gave the parties to the collective agreement (as contemplated there) "unbridled powers" which left non-parties with no remedy against abuse, overlooks the fact that non-parties were not precluded from approaching the Labour Court or the appropriate forum for suitable relief in the event of abuse.

[127] In terms of section 23(1)(d), read with the collective agreement concluded and extended in terms of that section, and section 65(1)(a) of the LRA, the right to bargain collectively, including the right to strike, is only limited, temporarily, for the duration of the collective agreement and in respect of the issues regulated by the agreement. The purpose of the limitation is to ensure effective and orderly collective bargaining and peace in the workplace. The means chosen to achieve that purpose (i.e. the limitation) is rationally linked to the purpose and is proportional to it.

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[136] In my view, the court a quo was correct in its conclusions. Section 23 does no more than create legal rights and obligations which flow from the conduct of private parties. The section does not purport to make all the trade unions and employees and employers and employers' organisations, who are parties to the collective agreements contemplated there, public figures or state organs (or state actors). It is an instance where the LRA allows self-regulation by private parties as a means to achieve, in particular, its purpose in respect of collective bargaining outside bargaining councils. In any event, the parties do not exercise any power. The legislature has provided for a consequence if the requirements of section 23(1)(d) are met.

[137] The respondents have also (correctly in my view) submitted that the ILO Recommendation 91, does not assist the appellants in their argument that extension of a collective agreement is only permissible if a state organ has a regulatory role in the process. Recommendation 91 does not make regulation by a state organ peremptory. In fact, it is clear from their writings that the Committees promote minimal state interference in collective bargaining.

[138] It follows that the appellants' constitutional attack was rightly dismissed by the court a quo. In light of the aforegoing, the appeal must fail. In respect of costs of the appeal, the parties are in agreement that even if the appeal were to fail it constituted an attempt by the appellants to vindicate constitutional rights and consistent with the rule in such cases, there should be no order as to costs. In light of the circumstances, I am of the view that there should be no costs order.